Ehsan Qaane joins JiC for this post on the role and importance of proactive outreach by the International Criminal Court (ICC) in Afghanistan, where the Court is likely to investigate allegations of war crimes and crimes against humanity,. Ehsan is a co-founder of the Transitional Justice Coordination Group (TJCG), a coalition of 28 Afghan individuals and civil society organisations working on raising the voice of war victims in Afghanistan.

Labourers rebuilding a destroyed shop in Kunduz city, in December 2015 (Photo: Najim Rahim / AP)

Afghanistan is awaiting the apparently imminent announcement of the International Criminal Court (ICC) on whether it will launch an investigation into the allegations of crimes against humanity and war crimes committed by various factions since 2003. But few Afghans feel part of the ICC’s processes, let alone are aware of the Court’s interest. Little has been done by the ICC in over ten years of preliminary examinations to communicate with the Afghan public. But rather than diminishing, the need for the Court to actively and effectively engage with Afghan public and explain its role grows with each passing day.

Judges’ deliberations on the Prosecutor’s request to launch the investigation are taking place in The Hague, which could not be more distant from the realities of Afghanistan. The United States made it clear they will go all out against the ICC in trying to protect its nationals from prosecution. This stance has emboldened all actors in Afghanistan looking to get away with impunity for crimes their forces committed. It is these realities that make the Court’s timely outreach to different groups and constituencies so crucially important, probably more so than in any other context the ICC has dealt with.

The Need for ICC Justice

The first factor driving the need for the ICC to enter the public discourse in Afghanistan is the sheer volume of victims’ demands for justice. These have been the driving force behind the Prosecutor’s request for the investigation to be launched. There is little hope for hundreds of thousands, if not millions, who have suffered at the hands of various combatants in the past 15 years that they will see justice through the state institutions any time soon. The country’s police and judiciary are woefully weak. In some areas it can hardly deliver on simple cases of “ordinary” crimes, let alone in complex cases of crimes against humanity in circumstances where potential perpetrators wield political, military and financial power that almost guarantees them impunity.

While the ICC cannot deliver justice to these multitudes, it has clearly provided hope to many that impunity is not inevitable, as witnessed by the large number of victims who have made some 6000 submissions during the victims’ representations phase, as a result of efforts undertaken by a number of civil society groups. However, before they were reached by activists, victims knew very little about the Court’s existence, let alone about how it operates. Crucially, victims know little about the limitations of ICC’s capacity to properly investigate, indict and arrest potential suspects in contexts like Afghanistan, how it depends on states’ cooperation in most areas of operation, how complex its procedures are and other important aspects of its work. Nor do they understand that the Court will likely narrow its focus to a few individual cases, which in this conflict afflicted low trust society will result in accusations of selective justice, unless the Court’s work is properly understood – and ideally accompanied by significant improvements in the government’s own accountability efforts.

Victim Representation at the Court

The representations phase, which extended from December 2017 to the end of January 2018, could be seen as a test of sorts of the Court’s commitment and capacity to engage with victims in Afghanistan and it would be hard to give it a passing grade. While the Participation and Reparations Section made as much effort as they could within their limited mandate, they were heavily dependent upon civil society.

Parts of the court have been congratulating themselves for relatively high levels of victims’ participation, but the lion’s share of work on informing the victims about the right and means to make submissions to the Court fell to civil society activists who undertook this effort at great risk, in a fairly hostile atmosphere.

The Court had no outreach or public information activities in the country to try and reach the victims directly, nor did it conduct a national information campaign that could have helped the population to better understand the Court’s role, the purpose of victims’ representations and how to submit them. Lessons must be learned from this and the Court simply must do better in communicating with victims if an investigation is launched. It is irresponsible to rely on civil society for this sensitive work or to prioritize the security of Court’s employees over Afghans.

Protecting Victims and Witnesses

This is especially important in view of the possible challenges that the Court will face in its effort to provide victims and witnesses with adequate support and protection. As we are all acutely aware, Afghanistan will present the Court with unprecedented challenges on this front. And while its witness protection capacities are determined by the resources at its disposal and rules of procedure and evidence, the key challenge will be to make victims and communities understand the importance of testimony for any hope for justice.

The experiences of ad hoc courts and the ICC’s past cases shows that the most effective witness support comes from communities which recognize the heroism and sacrifice of victims who step up to testify, often at a great personal cost of defying the threats from perpetrators and having to re-live the traumas they suffered already. Civil society, religious institutions, neighbours and families all have a role to play in supporting witnesses, but such support can happen only if they fully understand the positive impact court proceedings may have, while also understanding its limitations. This is where outreach and communication plays an enormously important role in providing sufficient information, making the court present and dispelling myths and misperceptions created by the hostile propaganda of those who promote impunity.

Actually Being There

In this context, despite the known security challenges (and new problems created by the latest assault on the Court from the US Administration) the Court’s physical presence in the country is of critical importance. Establishing an office would explicitly communicate the ICC’s commitment and ability to perform its core function of dispensing justice in Afghanistan.

While we fully understand that the Court must adhere to its own security protocols, it would be difficult to expect activists to expose themselves to great risks to disseminate information on Court’s behalf, especially considering the modest number and relative weaknesses of organizations on the frontlines of justice in the country, when the Court itself is unwilling to do so. For this to become a reality, the United Nations mission in Afghanistan will have to take on its share of responsibility to provide the Court with cooperation and support – both morally and in practice. While recognizing that the UN has many functions in Afghanistan and needs to protect its independence, it is unambiguously clear that without UN support there will be no hope of an on-ground presence of the ICC, which potentially could see the Court fail in the eyes of Afghans before any meaningful work is undertaken. The hostile stance of the United States, one of the permanent members of the Security Council, will surely complicate things for the UN, but a modality must be found.

Impact on the Potential Peace Process

Another decisive factor shaping the discourse around the ICC in Afghanistan, which demands a prompt and proactive approach to outreach, is the prospect of a potential peace process between the government, international actors and Taliban insurgents. The people of Afghanistan thirst for peace and our hopes that the violence may someday come to an end have been raised by symbolic ceasefires, meetings and statements from different sides that indicate that we could indeed see a peace process in foreseeable future.

It is indicative that justice has so far not been mentioned by any of the interlocutors in the context of possible peace negotiations. On the contrary, if we were to take the model employed to achieve peace between the government and Hezbi Islami group, we see that it provided blanket amnesty which amounts to impunity for past crimes. Insisting on justice to be included in such agreements is seen by some as being against peace.

If the ICC is to avoid being seen by all relevant political actors and the public as an impediment to a desperately needed peace, then the Court has to engage in communicating the benefits of justice for the prospects of long-term, stable peace in the country.

Despite its name, there is not much unity in the Afghan government, so ICC outreach must be directed to all sides within the government and the opposition, as well as international and regional leaders and religious institutions. In this, the Court must be transparent about its role and the limitations of its capacity to deliver anything beyond a handful of cases, at best. However, its role in catalysing a discussion about a process that would bring justice, acknowledgement, and redress to victims, both with and beyond the ICC, is indispensable. The ultimate effect of its intervention in this context could be to bring justice back to the government agenda as a fundamental element of a stable peace. Women’s rights activists have fought valiantly to insist on their inclusion in negotiations. Victims also deserve to be recognized in the process and outcome. The task is formidable given that public awareness on these issues is nearly non-existent. But this only means that outreach needs to start now and must be robust.

Proactive, Not Passive, Communication

For this to happen, the ICC needs to embark on developing a comprehensive and proactive communications strategy now. The Court cannot be passive, waiting for journalists to approach it, as was the practice in the victim’s representation phase. When it comes to media engagement, it is essential that work starts now to identify the information needs, establish effective channels of communications in relevant languages, help raise the understanding of the process and relevant procedures, and ensure that there is a pool of journalists with sufficient knowledge that will act to dispel misperceptions and misinterpretations resulting from the political bias that dominates coverage in a fractured media and political landscape. Investing in dispelling myths about the ICC and clearly explaining concepts such as complementarity and the reasoning behind its decisions, will prove far more valuable than relying on assumptions that journalists and others will simply look for the information on the ICC’s website. No website – regardless of how sophisticated – is an effective tool in anticipating and countering hostile propaganda before destructive myths and misperceptions are cemented in the public discourse.

Additionally, engaging Afghanistan’s civil society from the beginning as one of the key partners, not to simply disseminate information but to be listened to as well, will ensure that there is a forum for dialogue which will help to manage expectations and facilitate prompt feedback. Such a forum could be a platform for the development of a court support network composed of civil society groups, which would help disseminate information to communities across the country and ensure that the narrative around the ICC is based on facts rather than myths.

Time cannot be wasted when it comes to developing such a communications strategy. To illustrate: if the decision on the possible investigation is positive, the Court needs to be prepared to immediately present a coherent narrative about the ICC to make sure that this crucial announcement is properly understood and well received, leaving no space for interpretations and misunderstandings. And then the real work begins.

No Time to Waste

Afghan civil society stands ready to support the work of the Court. However, they need to be confident and convinced that the Court will not sacrifice activists to protect itself in the process of conducting its cases related to Afghanistan. The representation phase was a failed test and the Court has to do better as the challenges that it will face in case it launches an investigation will go far beyond what the representation phase entailed.

The scale of the task ahead is enormous. The Court cannot fall back on the strange logic of its own silos as a reason for failure or inaction. One of the primary tasks which will test the Court’s credibility will be its ability to provide adequate victim and witness support and protection. Without ensuring that its mission is well understood, as well as its limitations to deliver comprehensive justice, it cannot hope to win the trust of those who are supposed to provide crucial evidence. And without that trust, there will be no justice. In this case, outreach is not simply about disseminating information; it could also prove to be the ultimate test of the Court’s commitment to at least try to deliver some justice to Afghans in circumstances where it will face more powerful enemies than ever before.